from the controlled-vegetables dept

Early last year, a federal court granted immunity to a sheriff's office that raided someone's house based on nothing more than faulty field drug tests and an officer witnessing a resident buying gardening supplies seven months earlier. This is the short version of what went down that day, via the Washington Post.

The family was held at gunpoint for more than two hours while the police searched their home. Though they claimed to be looking for evidence of a major marijuana growing operation, they later stated that they knew within about 20 minutes that they wouldn’t find any such operation. So they switched to search for evidence of “personal use.” They found no evidence of any criminal activity.

The whole ordeal lasted two-and-a-half hours. Robert and Addie Harte, along with their children, were held at gunpoint for most of it. The supposed probable cause were tea leaves pulled from the Hartes' trash, which supposedly tested positive for marijuana. There was no follow-up lab test. The gardening supplies were… well, gardening supplies. Robert Harte was a stay-at-home dad who liked gardening.

This hobby is what brought law enforcement to the Hartes' house in the first place. A state trooper with nothing better to do spent a few hours every day sitting in a local gardening store's parking lot writing down descriptions of shoppers and logging their license plates.

The story behind it is detailed in the Tenth Circuit Court of Appeals decision [PDF]. It shows the lead-up to the raid was just as much a fiasco as the raid itself. And it opens with a blistering take on the sheriff's actions.

Law-abiding tea drinkers and gardeners beware: One visit to a garden store and some loose tea leaves in your trash may subject you to an early-morning, SWAT-style raid, complete with battering ram, bulletproof vests, and assault rifles. Perhaps the officers will intentionally conduct the terrifying raid while your children are home, and keep the entire family under armed guard for two and a half hours while concerned residents of your quiet, family-oriented neighborhood wonder what nefarious crime you have committed. This is neither hyperbole nor metaphor—it is precisely what happened to the Harte family in the case before us on appeal.

Then it goes further:

The defendants in this case caused an unjustified governmental intrusion into the Harte's’ home based on nothing more than junk science, an incompetent investigation, and a publicity stunt. The Fourth Amendment does not condone this conduct, and neither can I.

That's the defendants' qualified immunity being stripped away. The lower court excused the officers' behavior, saying they acted in good faith by relying on field tests with a 70% failure rate when obtaining a warrant. The Appeals Court is unwilling to grant these officers the benefit of a doubt. The decision dives into the events leading up to the raid, which would be comical if they weren't so frightening.

It begins with a gardening store shopping trip and a law enforcement officer with too much time to spare.

On August 9, 2011, Robert Harte and his two children visited the Green Circle Garden Center, a garden store, where they purchased one small bag of supplies. Harte was a stay-at-home dad, attempting to grow tomatoes and other vegetables in his basement as an educational project with his 13-year-old son. Unbeknownst to Harte, Sergeant James Wingo of the Missouri State Highway Patrol was parked nearby in an unmarked car, watching the store as part of a ‘pet project.’ Wingo would often spend three or four hours per day surveilling the garden store, keeping meticulous notes on all of the customers: their sex, age, vehicle description, license plate number, and what they purchased. On this particular day, Wingo observed Harte’s visit and recorded the details in his spreadsheet.

From there it gets worse. Apparently, the local sheriff's office liked to conduct raids on 4/20 with its annual "Operation Constant Gardener." Occasionally, these raids resulted in the shutdown of grow operations. The previous year, however, was mostly remembered for the raid of a tomato growing operation. So, with April 20th only a few weeks away, the sheriff was desperate to bury the embarrassing past with new raids and drug busts. Unfortunately, the office really didn't have any solid leads.

Enter Trooper Wingo and his freelance spreadsheet. Wingo didn't really have any leads either, but he did have a list of plate numbers to choose from. Somehow, the Hartes were picked out of the Excel lineup, even though the observed purchase had occurred seven months prior. A lack of leads and cooperating law enforcement agencies wasn't enough to slow the sheriff's roll. The Johnson County Sheriff's Office (JCSO) put together plans for a victorious press conference. Only after that did it decide to tackle the problem of securing wins.

The JCSO needed some probable cause. So it conducted three trash pulls. It did not, however, take a closer look at its intended "suspects." If it had, it might have saved itself from this lawsuit.

Despite believing the Hartes had a marijuana grow operation somewhere in their home, the JCSO did not conduct surveillance, check utility records, look for fans or other alterations typically used to conceal grow operations, or notice the tomato garden readily visible through a front-facing basement window. There is also no evidence, aside from the apparent discovery of a traffic ticket, that anyone at the JCSO even conducted a background check on the Harte family. If they had, the record tells us that they would have learned that Robert and Adlynn Harte were both former CIA employees with the highest level of security clearance; Mrs. Harte worked as an attorney at Waddell and Reed Financial and was a graduate of the Leawood Citizens Police Academy; her brother was also an attorney, formerly for the Navy JAG Corps, and an ex-New York City police officer trainee; the Hartes had a son in seventh grade and a daughter in kindergarten; and they had no criminal record other than the aforementioned undesignated traffic ticket.

The first trash pull found wet leaves that were determined to be unsuspicious. Unfortunately, April 20th was getting closer and the JCSO still had no suspects. So, the trash was searched again. Again, wet leaves were found, but this time an officer decided they were suspicious. A field test performed on April 10th said it was marijuana. No photographic record of this field test was kept, even though it was standard procedure. A third trash pull was conducted on April 17th. Again, the officers claimed the test said the leaves were marijuana, even though again no one bothered to document the test results.

The rush to find a 4/20-worthy perp meant even more omitted steps.

With nothing more than Harte’s one trip to the garden store over eight months earlier and two allegedly positive field tests, the JCSO went straight for a search warrant. The directions for use of the test clearly provide “that these tests are only presumptive in nature” and “will give you probable cause to take the sample in to a qualified crime laboratory for definitive analysis.” Officers opted against sending the vegetation to a lab for confirmation, despite having the ability to do so. Had the officers taken that extra step, they would have saved the Hartes a traumatic and invasive experience and themselves the embarrassment of a botched investigation. The “marijuana,” officers would soon learn, was nothing more than loose-leaf Teavana tea.

The sheriff sent seven officers in SWAT gear to perform a 7:30 am raid on the Harte's house. The officers spent almost three hours trying to justify the raid. No one involved showed any concern for the Harte's children and even sent away a neighbor who offered to watch them during the search. The sheriff's office was unable to cancel its planned press conference, so it went live with footage of the raid and the claim marijuana plants were discovered.

The court examines all the events and finds it plausible the officers who field tested the trash pull lied about the field test results. At bare minimum, they concealed the nature of the tests (and their 70% failure rate) when applying for a warrant.

The record evidence before us creates a triable issue of fact on whether Burns and Blake lied about having conducted the field tests, or about having obtained “positive” results. The only evidence that the field tests were conducted is the deputies’ own testimony and representations in the warrant affidavit; there is no photographic evidence, despite Blake’s testimony that he had a camera in hand at the time. The Hartes have presented sufficient evidence to cast doubt on the veracity of the deputies’ statements. And while the term “positive” is used by the law enforcement witnesses throughout the record, the test upon which they seek to rely clearly precludes such a conclusion. The face of the package patently provides, “these tests are only presumptive in nature” and “will give you probable cause to take the sample in to a qualified crime laboratory for definitive analysis.”

[...]

Furthermore, the plant matter found on April 10 and 17 was similar to the material collected on April 3. Yet on April 3, it was identified as innocent plant material and discarded without testing. As the April 20 deadline approached, however, it is notable that the officers determined that this previously innocuous material was now suspicious and should be tested for the presence of marijuana. A jury could certainly infer the reason for this about-face was pressure to meet an arbitrary April 20 deadline for manufacturing probable cause.

The court also points out the JCSO was its own worst enemy, willing to sacrifice Constitutional rights on the altar of publicity.

Defendants were quite candid about the selection of April 20 as a publicity stunt. Emails sent following the 2011 operation discussed ideas for the following year, including “a telethon type billboard with a large green marijuana plant filling up as the pledges come in, making T-Shirts and whatnot.” This is too rich for fiction. Messaging about the purpose of the raids was imbued with theatrics: Wingo noted one agency’s observation that the raids would make “4/20 . . . something to fear rather than something to celebrate”; and the JCSO’s 2012 press release framed the raids as law enforcement’s “celebrat[ion] [of] this so-called [marijuana] holiday.” Moreover, the JCSO began planning the press conference and drafting public statements touting their success long before officers had even established probable cause to conduct the raids. Adding to the pressure of the 4/20 deadline, the success of this publicity stunt depended on a limited pool of “suspects” from Wingo’s garden store surveillance. Wingo himself stated that he did not have enough new contacts to justify a 2012 operation, but Reddin was determined to “at least mak[e] a day of it.” The record is mute about a legitimate, law-enforcement rationale for requiring the raids to be conducted on that date.

And, just in case the JCSO defendants think they have room for argument with "good faith" assertions, the decision delivers this blunt assessment of the incident.

There was no probable cause at any step of the investigation. Not at the garden shop, not at the gathering of the tea leaves, and certainly not at the analytical stage when the officers willfully ignored directions to submit any presumed results to a laboratory for analysis. Full stop.

And any arguments that the Sheriff's Office should be allowed to call field drug tests "probable cause" is shot down here:

One study found a 70% false positive rate using this field test, with positive results obtained from substances including vanilla, peppermint, ginger, eucalyptus, cinnamon leaf, basil, thyme, lemon grass, lavender, organic oregano, organic spearmint, organic clove, patchouli, ginseng, a strip of newspaper, and even air. As demonstrated by this litigation, caffeine may now be added to that list. A 70% false positive rate obviously flunks the reliability test.

[...]

By failing to ensure the reliability of the field tests used by the deputies in this case, and by not requiring lab confirmation as a prerequisite for seeking a search warrant, Sheriff Denning and the JCSO allowed deputies to base probable cause on largely inaccurate information. The constitutional violations in this case can be directly attributed to that policy.

A hobbyist, junk science, and a press-hungry sheriff's office all combined to stage a dramatic raid of hobby gardeners. No amount of "good faith" can salvage that.

The family was held at gunpoint for more than two hours while the police searched their home. Though they claimed to be looking for evidence of a major marijuana growing operation, they later stated that they knew within about 20 minutes that they wouldn’t find any such operation. So they switched to search for evidence of “personal use.” They found no evidence of any criminal activity.

The investigation leading to the raid began at least seven months earlier, when Robert Harte and his son went to a gardening store to purchase supplies to grow hydroponic tomatoes for a school project. A state trooper had been positioned in the store parking lot to collect the license plate numbers of customers, compile them into a spreadsheet, then send the spreadsheets to local sheriff’s departments for further investigation.

[...]

On several occasions, the Sheriff’s Department sent deputies out to sort through the family’s garbage. (The police don’t need a warrant to sift through your trash.) The deputies repeatedly found “saturated plant material” that they thought could possibly be marijuana. On two occasions, a drug testing field kit inexplicably indicated the presence of THC, the active drug in marijuana. It was on the basis of those tests and Harte’s patronage of a gardening store that the police obtained the warrant for the SWAT raid.

The incriminating leaves were nothing more than loose-leaf tea. The Hartes were not drug dealers, nor were they using marijuana. Nonetheless, the federal judge decided the whole thing -- from cops camping out in the parking lot of a gardening store to the two bogus field tests to the fruitless raid of the Harte's residence all complied with the Fourth Amendment.

[Judge John W. Lungstrum] found that the police had probable cause for the search, and that the way the search was conducted did not constitute excessive force. He found that the Hartes had not been defamed by the raid or by the publicity surrounding it. He also ruled that the police were under no obligation to know that drug testing field kits are inaccurate, nor were they obligated to wait for the more accurate lab tests before conducting the SWAT raid.

The Hartes' lawsuit is still alive… barely. The judge granted a motion for summary judgment in favor of the defendant law enforcement agency, but the case has not been dismissed.

Yes, there was a legal decision, but it had nothing to do with visiting gardening stores or the culpability of drinking tea. Instead, the issue in the case was when the police can rely on positive field tests for THC, the active ingredient in marijuana. The judge ruled that officers cannot be held personally liable for searching a home with a warrant based on two positive field tests for marijuana, a week apart, from plant materials found in the suspect’s discarded trash, at least when the officers did not know about the risks that the field tests results were false positives

This basically says the same thing Balko's paragraph on the ruling does, only Kerr maintains that it does not show drinking tea and visiting gardening supply stores could lead to a SWAT team raid. The problem is that this is exactly what happened. So, while the judge's decision doesn't explicitly state officers are fully justified in using dubious field tests and inefficient garden store parking lot stakeouts as probable cause for search warrants, it absolutely does affirm that these elements are insufficient to show a Fourth Amendment violation.

Why? Because probable cause is whatever a cop says it is. This is an ongoing issue in states where marijuana has been partially legalized. In California, medical marijuana is legal. The cops can't seem to deal with this new reality. So, they find bogus reasons to raid houses, relying on multiple law enforcement-friendly exceptions to the Fourth Amendment to keep their busts intact… or at least minimize the number of times judges will find them culpable for violations. Cops say "upon information and belief" and magistrate judges nod in approval.

In my area of the world, I get a lot of what defense attorneys call “medical marijuana cases,” and prosecutors – enrobed, or not – call drug-manufacturing, or drug-dealing, cases. Because the voters of the State of California voted to decriminalize marijuana use for people who obtained recommendations from medical doctors for the use of marijuana, and because doctors give out (really bad) legal advice along with the recommendations, and because the cops don’t want to try to go after doctors who recommend marijuana to anyone with $150 bucks (or whatever the current going rate is), because they have the money to fight back, we have a lot of folks growing marijuana in the highly-conservative right-wing center of California (the San Joaquin Valley) where it is most definitely not wanted by those in power. And so a cop will talk to a judge about a house he’s heard about with a bunch of marijuana plants, and say, “Based on my training, and experience, no one grows this many plants unless they are actually marijuana dealers hiding behind the medical marijuana laws stupidly passed by the electorate.”

Boom! There’s your probable cause. The law be damned.

In this case, the probable cause was exceedingly thin. The Hartes went to a store where hydroponic gardening supplies could be purchased -- items that are used for legal gardening all the time. This simple fact was all that was needed for law enforcement to perform trash pulls. Items from the trash were tested and "found" to be marijuana, even though they weren't.

The only response offered by the sheriff's department for its field test failures is a shrug of indifference. If a cop tells a magistrate judge the tests are reliable, more often than not, a warrant will be issued, despite loads of evidence showing field tests to be notoriously unreliable. The officers simply say, "Huh. I've never heard of a failed test," and a federal judge forgives them for their ignorance and ineptitude.

Hilariously, the sheriff claimed these two failures on the same case are the only two times the department's field tests have been wrong, dating back to 1978.

The decision makes it clear the best thing cops can do to make bogus searches stick is to be wilfully ignorant of failure rates. They should do no research on the subject and should never question a positive test result. (They will likely remain skeptical of every negative result and re-test until the results confirm their biases.) Any information they might have that undermines probable cause should be discarded and wiped from memory. After all, the judicial branch has stated they're under no obligation to ensure statements made in warrant affidavits actually have any merit. Ignorance is bliss… or at the very least, good faith.

While Kerr is technically correct that a judge didn't say cops could go after anyone whose trash contains leaves if they also shop at gardening supply stores, the end result is basically the same thing. Kerr's view of the decision is summed up best by this comment on his post. (And credit where due, Kerr did point out that he enjoyed this comment.)

This is one more example of a case where the vast majority of people of good will review the facts and conclude there was an obvious and gross violation of justice while a pedant who is an expert in the 4th amendment assures us that "No, no, this is all very interesting, but..."

If you want a technical view of the ruling, Kerr lays it out best. But the decision runs contrary to many people's view of the Fourth Amendment: that they should be free from unreasonable searches. The problem is, what's "unreasonable" to the public is very much considered to be "reasonable" to law enforcement and far too many judges. That explains the outrage at the outcome. The law can't protect innocent people from law enforcers. The remedies are too limited, and far too often, removed completely by judicial deference to law enforcement's definition of "reasonable." Scott Greenfield explains.

That the judge who signed off on the warrant accepted the results of the test as being sufficient to show probable cause, that the test produced sufficient positive results, even if totally false, to support the issuance of the warrant, made Lungstrum’s ruling perfectly legally reasonable. The Fourth Amendment says get a warrant, and they did. It requires probable cause, and they had it based on the field tests. The police enjoy qualified immunity unless they knew their application to contain material omissions about the test, and they shrug and say, “science.”

Except the Hartes did nothing more than some veggie gardening and drink tea. All the twists of the law upon which summary judgment was granted against them not only failed to protect the sanctity of the home of two innocent people from a SWAT raid, and all that accompanies it, but provided no remedy after the accusations fell apart.

At the end of it, we're supposed to take comfort in the fact that at least a warrant was obtained. This piece of paper, no matter how ignorantly or deceptively obtained, will shield law enforcement from much of the potential damage. But everything about this decision says cops are better off stupid and idealistic, rather than cognizant of the deficiencies of their tactics and methods. Judges don't expect law enforcement officers to know the laws they enforce and this only further encourages them to remain ignorant on other subjects as well.

from the urls-we-dig-up dept

Farming isn't a hobby. Gardening is a hobby. No one really expects to be able to grow enough food to feed hundreds of households from a garden, but maybe technology can help change that. Autonomous farming robots and other labor-saving devices might make farming a lot easier for a few people to be much more productive, but we're not quite at the point where anyone really needs to change farming techniques so drastically. However, if you think you'd want to become a post-modern farmer, check out a few of these links.

from the urls-we-dig-up dept

There are plenty of food additives that are just fine to eat, and many of them even have scary-sounding chemical names. This doesn't mean that all food additives are bad OR that all food additives are good. While it would be much simpler to make generalizations and label things either good or bad, it's not quite that simple, unless you want to only eat food with a very limited shelf life. Some preservatives reduce food waste and have undetectable effects on the nutritional benefits of the foods they preserve. On the other hand, there are some toxic substances that should be avoided, and they can be all-natural (eg. arsenic) or have some anthropogenic origin.